Smith v. Southern R. Co.

• Decision Date: 31 October 1912
• Citation: 76 S.E. 109,93 S.C. 115
• Parties: SMITH v. SOUTHERN RY. CO. et al.
• Court: South Carolina Supreme Court

76 S.E. 109

93 S.C. 115

SMITH v. SOUTHERN RY. CO. et al.

Supreme Court of South Carolina

October 31, 1912

Appeal from Common Pleas Circuit Court of York County; Ernest Gary Judge.

"To be officially reported."

Action by Henry D. Smith against the Southern Railway Company and another. From an order of nonsuit, plaintiff appeals. Reversed.

J Harry Foster, of Yorkville, for appellant. McDonald & McDonald, of Winnsboro, for respondents.

HYDRICK J.

This is an appeal from an order of nonsuit in an action for damages for personal injuries sustained by plaintiff, who, at the time he was injured, was a track foreman in the service of the defendant Southern Railway Company.

While plaintiff was at work on his section, Mr. Douglas, who was also in the service of said defendant, as supervisor of bridges and buildings, came along in a railroad motor car and, after some conversation with plaintiff, Douglas asked him to get in the car and go to Rock Hill with him. Plaintiff declined the invitation, but said he would like to ride over his section with him for the purpose of inspecting his track. A trestle in plaintiff's section had been "filled" the week before, and plaintiff told Douglas that it had been reported out of line. Douglas replied that he was glad he had mentioned it, and told him to get on the car, and they would go and inspect it together. Plaintiff get on the car, and, after going some distance, the car jumped the track, and plaintiff's leg was broken. The negligence alleged and relied upon to sustain the action was that of Douglas in ordering plaintiff to get on the motor car, which the testimony tended to show was known to Douglas to be in a defective and dangerous condition. Plaintiff sought to bring his case within the provisions of section 15 of article 9 of the Constitution, which makes railroad corporations liable to their employés for injuries which result from the negligence of "a superior agent or officer, or of a person having a right to control or direct the services of a party injured."

The sole question therefore is whether there was any testimony tending to prove that Douglas was, as to plaintiff, a superior officer or agent, or had the right to control or direct his service. According to the rules of the company in evidence, the work of keeping up the road is under the general supervision of the roadmaster, who has under him subordinates called track supervisors and supervisors of bridges and buildings. By rule 812 the former have charge of the repairs of the roadbed and tracks, and of the track foreman, who report to and receive instructions from them. By rule 913 the latter have charge...